skip to Main Content
Name: Kling v. Superior Court
Case #: S176171
Court: CA Supreme Court
District CalSup
Opinion Date: 10/18/2010
Summary

Under Penal Code section 1326, subdivision (c), when a defendant is the party requesting the documents via a subpoena duces tecum, the prosecutor has the right to discover the identity of the subpoenaed party and the nature of the documents sought under the subpoena, including the identity of the person to whom the documents pertain. Under Penal Code section 1326, documents and records in the possession of nonparty witnesses and government agencies are obtainable by subpoena duces tecum, with the requested item to be delivered to the clerk of the court in accord with Evidence Code section 1560. The court then makes an in-camera decision as to whether the party requesting the item is entitled to it. In People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, the Supreme Court ruled that the prosecution has a right to notice and presence at the hearing and may participate in the hearing and present an argument, if the court so desires. In this case, the Court extended the prosecution’s right to also include knowledge of the nature of the documents sought under the subpoena, including the identity of the subject of the documents. The Court reasoned that the People’s due process right to be heard required that they be provided that much information. The defendant’s constitutional rights can be protected by redacting privileged work or attorney work product; by conducting ex parte hearings; and by withholding release of information until the defense determines it intends to offer the items obtained with the subpoena at trial.